POSSESSION OF CONTROLLED DRUGS AND SUBSTANCES

Transcription

1 Type of law: CRIMINAL LAW A 2015 Alberta Guide to the Law POSSESSION OF CONTROLLED DRUGS AND SUBSTANCES Student Legal Services of Edmonton

2 COPYRIGHT & DISCLAIMER GENERAL All information is provided for general knowledge purposes only and is not meant as a replacement for professional legal advice. If you have a personal legal question that requires legal advice, please consult a lawyer. COPYRIGHT Copyright 2015, Student Legal Services of Edmonton. All rights reserved. Copying any material, in whole or in part, is prohibited unless prior consent has been obtained. Some material may be subject to copyright from an outside source and thus there may be different restrictions on the reproduction of this material. LIMITATION OF LIABILITY Student Legal Services of Edmonton is not liable for any loss or damage caused by an individual s reliance on information or material obtained from Student Legal Services of Edmonton. By accessing the information, individuals agree that any usage is at their own risk. INFORMATION AND OPINIONS In some instances, information obtained by Student Legal Services may have been provided by outside sources. Even with the high standards set by Student Legal Services of Edmonton, we accept no responsibility for the accuracy and reliability of the material. Opinions and Information provided by third parties does not represent that of Student Legal Services of Edmonton. IMAGES Icons made by Freepik from Infographics sourced from Piktochart from

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4 POSSESSION OF CONTROLLED DRUGS AND SUBSTANCES CATEGORIES OF DRUGS...3 POSSESSION. 4 WHAT FACTORS WILL BE CONSIDERED IN SENTENCING? WHAT ARE THE MAXIMUM PENALTIES?...5 WHAT IF I HAD A SMALL AMOUNT?...5 ARE THERE DEFENCES AVAILABLE?...5 GETTING ARRESTED..6 With a Warrant.6 Without a Warrant Police Searches Appearance Notices....7 WHERE CAN I GET HELP OR MORE INFORMATION?

5 POSSESSION OF CONTROLLED DRUGS AND SUBSTANCES Keep in mind, the United States and other countries may deny you entry if you are charged (convicted) with drug offences. CATEGORIES OF DRUGS There are six basic categories of drugs that are controlled by the Controlled Drugs and Substances Act. These categories are all listed in schedules attached to the Act. The rules about who can have certain drugs, and when the drug can be possessed depends on the schedule the drug is found under. It is illegal to import, export, traffic, or to possess drugs in any of the schedules for the purpose of trafficking. Schedule 1: o Includes drugs such as: heroin, morphine, cocaine, codeine, amphetamines, methamphetamines, MDMA, and many other similar substances. (coke, crack, speed, meth, ecstasy, etc.) o These drugs are illegal to possess unless you have a doctor s prescription (e.g. morphine, codeine, oxycodone). Some drugs are always illegal to possess (e.g. heroin, crystal meth, crack cocaine). Schedule 2: o Includes cannabis products. (marijuana/pot/weed) o These drugs are illegal to possess without a doctor s prescription. Schedule 3: o Includes drugs such as: LSD, psilocybin. (acid, mushrooms) o These drugs are illegal to possess without a doctor s prescription. Some of these drugs are always illegal to possess. Schedule 4: o Includes drugs such as: barbiturates, steroids, rohypnol. (downer s, juice, rufies) o These drugs are illegal to possess without a doctor s prescription. Schedule 5 and 6 are drugs and substances that are not allowed to be imported into Canada without proper authorization. Some of these are legal to possess without a doctor s prescription (e.g. Cold medications). Some of these substances are used to manufacture drugs and there are strict regulations for the possession of these substances. 1

6 POSSESSION It is an offence to be in possession of any drugs/controlled substance listed in schedules 1, 2, or 3. If in doubt about whether or not a particular substance is illegal, contact a lawyer or look specifically at the schedules in the Controlled Drugs and Substances Act. This Act is available online ( or from SLS. Generally speaking, if the substance is a drug which has not been specifically prescribed to you by a doctor to the person who possesses it, and is not a drug sold over the counter in a pharmacy, chances are it is controlled and therefore illegal to possess. Not knowing that the substance is illegal is not a defence. This is based on the principle that not knowing the law is not a defence. "Possession" does not mean to "own. Section 4(3) of the Criminal Code defines possession as: Having a controlled drug in your possession; or knowingly Have a controlled drug in the custody of another person; or Having a controlled drug any place for the use or benefit of yourself or of another person. More than one person can be in possession of a drug/controlled substance at the same time. For example, if you know you are holding drugs that belong to a friend, both you and your friend may be in possession of those drugs. WHAT FACTORS WILL BE CONSIDERED IN SENTENCING? The sentence you get once you are found guilty of possession depends upon: A. The circumstances of the offence: 1. The type (or schedule) of the drug/controlled substance; 2. The quantity; 3. Whether the Crown proceeds by way of summary conviction or by indictment. Indictment generally carries a harsher sentence. B. The circumstances of the offender, for example: 1. Age; 2. Criminal record; 3. Mental health; 4. Aboriginal status; 5. Etc. If you have a prior criminal record, especially a drug record the sentence will probably be harsher than if you have no previous involvement with the law. 2

7 WHAT ARE THE MAXIMUM PENALTIES? The maximum sentences that can be imposed for possession are: Drug Schedule Schedule 1 (e.g. heroin, cocaine or meth) Schedule 2 (marijuana/weed) [less than 30 grams/ 1 gram hash] Schedule 2 (marijuana/weed) [more than 30 grams/ 1 gram hash] Schedule 3 (LSD, mushrooms) Maximum Indictment Penalty 7 years in jail N/A 5 years less a day in jail 3 years in jail Maximum Summary Penalty $1,000 fine and/or 6 months in jail for a 1 st offence $2,000 fine and/or 1 year in jail for subsequent offences $1,000 fine and/or 6 months in jail $1,000 fine and/or 6 months in jail $2,000 fine and/or 1 year in jail for subsequent offences $1,000 fine and/or 6 months in jail $2,000 fine and/or 1 year in jail for subsequent offences WHAT IF I HAD A SMALL AMOUNT? Generally speaking, possession of marijuana in small amounts will result in a fine. If there are prior related convictions, jail is a possibility. If the quantity is substantial, the chances of jail increase. For other types of drugs/controlled substances, especially those in schedule 1, a small amount may be dealt with by a substantial fine. However, there is a risk of jail for even a small amount of cocaine or heroin. Again, the chances of jail increase and the amount of any fine increases if there are prior related convictions. ARE THERE DEFENCES AVAILABLE? If you are charged with possession of a drug/controlled substance, you should get legal advice (speak to a lawyer). A person trained in criminal law can advise you whether or not there is a defence, whether proper procedures were followed by the police, and what effect improper procedures might have on the charge. If the search was illegal, this could result in the evidence not being able to be used against you. The Crown must also prove what you had was the drug they are saying it was. Often times, this is done by a certificate of 3

8 analysis from a lab for the drug/controlled substance, which must be shown to you before trial. GETTING ARRESTED You can be arrested in two circumstances: 1) With a warrant; or 2) Without a warrant. 1. With a Warrant A warrant is a court order allowing the police to arrest a person based on information the police have that you likely have committed, or are in the process of committing, a crime. The officer must show you the arrest warrant. 2. Without a Warrant An arrest can be made without a warrant if: You are found in the act of committing a criminal offence; An officer has reasonable and probable grounds to believe that you have committed an offence; or An officer has reasonable and probable grounds to believe that you are about to commit an offence. Reasonable and probable grounds means that an officer must have some reason to suspect that you have committed or were about to commit an offence. It is important to remain calm and be respectful and polite with the police. If you are not peaceful, you may receive a charge of resisting arrest, obstruction of justice, obstructing a peace officer, or assaulting a peace officer. When you are arrested, the officer MUST give 1) The reasons for the arrest; and 2) Inform you of your right to contact legal counsel (a lawyer). The officer MUST also inform you of all available options: including free numbers for lawyers and the Legal Aid Society, if they are available in the area of the arrest. The officer must also give you an opportunity to exercise your right to contact a lawyer as soon as it is reasonable to do so. Until you are arrested, you do not have to speak with the police. The only information you need to give the police is your name and birthdate (identifying information). It is in your best interests to provide the correct legal name, otherwise you may be detained. You may be charged with obstruction if you provide a false name. Once you have been lawfully arrested, you do not have to speak to the police or answer any questions. You have a right to 4

9 speak to a lawyer. If you decline your right to speak to a lawyer, the police are allowed to ask you questions and what you say may be used against you in court. You still do not have to answer the police s questions or give a statement. You have a right to silence, no matter how long you are questioned. POLICE SEARCHES Until you are lawfully arrested, you do not have to allow police to search your person or possessions. However, a police officer can search you, even before you are arrested, if you give express consent for the police officer to do so, provided the consent is informed. This means that you have agreed that an officer can search you even though you know that you are able to say no. You cannot be forced or pressured into consenting to be searched. However, you should not physically resist a search. Once you have been lawfully arrested, the officer has a right to search you, your belongings, and the area around you for evidence of the alleged offence or for a weapon. If you have not been arrested, (for example, if you have been pulled over by the police at a roadside check stop) the officer can only search the area that is in his/her plain view. The officer cannot enter a vehicle to search it, but may use a flashlight to look into the vehicle under these circumstances. If the officer has reasonable and probable grounds to search the vehicle, it is a lawful search, and the officer can enter the vehicle to search it. APPEARANCE NOTICES Once you have been arrested, the officer will make a decision about whether to release you on an APPEARANCE NOTICE or take you to the police station. In most minor cases, you will be released on an appearance notice. The notice will state that you are suspected of committing the offence listed and it will order you to appear on two occasions: 1. The first appearances will probably be at a local police station to have your fingerprints and photograph taken; 2. The second appearance will probably be at the local courthouse to enter a plea of either guilty or not guilty to the charge(s) against you. It is VERY IMPORTANT that you make both appearances at the dates and times listed, and seek the assistance of a lawyer to accompany you. If you do not attend court, you may be charged with another offence for FAILING TO APPEAR and a WARRANT FOR YOUR ARREST may also be issued. If you do not have a lawyer for your court date, you can request to speak to duty counsel (a free lawyer at the court house) who can speak to the judge on your behalf. The police do not have to give you an appearance notice. The police have the option of taking you to the police station, where you may be kept in jail. This is generally done if they believe: 5

10 It is necessary to keep evidence of the offence safe; It is necessary to properly identify you; It is necessary to protect the public/ prevent you from committing further offences; or It is necessary to ensure you will attend your court dates. You will have the right to appear before a Justice of the Peace or a Judge within 24 hours of your initial arrest. This appearance is called a BAIL HEARING (or an INTERIM RELEASE or SHOW CAUSE HEARING). This is where the Prosecutor (Crown lawyer), or police officer (in the case of a Justice of the Peace bail hearing), may argue that you should not be released from jail prior to your trial. IF you are already out on outstanding charges, the onus is on you to give reasons why you should be released. After the Justice of the Peace or Judge has heard from both sides, they will decide whether or not to release you, and if so, what conditions should apply. (Examples of conditions include: no drinking, staying in the area, curfew, residing at a certain residence, no contact with certain individuals, no cell phones, etc.) 6

11 WHERE TO GET HELP OR MORE INFORMATION LEGAL INFORMATION OR ADVICE Lawyer Referral Services Lawyer Referral will provide you with the names of three lawyers who practice in the area of law which you need help in. Once you select a lawyer a half hour phone interview with that lawyer is free. Legal Aid Society of Alberta ( Student Legal Services of Edmonton ( Corona Criminal Law Project If you cannot afford a lawyer, and Legal Aid will not accept you and the Crown is proceeding with your case by summary conviction then you may apply to Student Legal Services for assistance. Student Legal Services can act as your legal agent in all matters relevant to your case which take place in the Provincial Court of Alberta - Criminal Division. Native Counselling Services ( Native Counselling provides court services and legal information. John Howard Society ( Legal clinic and court support for men Elizabeth Fry Society ( Court Worker Office Legal clinic and support for women. ADDICTION SUPPORT AHS Adult Detoxification AHS Addiction Services Edmonton George Spady Centre The George Spady Centre provides overnight accommodation for the public inebriate and offers a 3 day detox program for abusers of alcohol and drugs. Narcotics Anonymous ( 7

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